Married couples can dissolve their marriage through divorce. This ends the marriage and the divorced parties can legally marry again.
The divorce process will depend on whether the marriage is a civil marriage or customary marriage:
There are a number of issues that need to be addressed in a divorce, including :
PRIMARY CARE OF THE CHILDREN
Before the Court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the Court can decide. A Family Advocate of the Court help investigate which parent is in the best position to look after the children and will represent the children in Court if necessary.
If the divorce is taking a long time (for example, if the parties don’t agree) then an interim care and contact order can be issued setting out who will look after the children while the divorce is being finalised. This is done by way of an Application to Court.
In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African Customary law, the father usually remains the children’s natural guardian. In Hindu and Muslim marriages the mother is the natural guardian. In all cases, the father still has a duty to support the children.
CONTACT WITH THE CHILDREN
The parent who is not the primary carer usually still want contact with their children. There therefore needs to be an agreement in place stipulating when, where and how this parent will have contact with the children. If it is not in the best interests of the children, the court can restrict contact or allow contact under supervision.
When a couple gets divorced, one party is often in a better financial position than the other. The person who is primary carer of the children will also have expenses that the other parent does not have. The Court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party – spousal maintenance if necessary.
If there are problems with maintenance after the divorce have been finalized, the Maintenance Officer at the Magistrate’s Court is approached. If the parties cannot agree on how much maintenance should be paid the Court will decide taking into account the circumstances of the matter.
PLEASE NOTE – The duty to support the children is upon both parents regardless of who is the primary care taker of the child.
DIVISION OF PROPERTY
How the family property will be divided up depends on what property regime the couple adopted when they got married i.e – whether married via Antenuptial contract, in community of property, out of community of property WITHOUT accrual or out of community of property WITH accrual.
If there is no pre-marital contract, then it is determined by law. The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared including property and debts. Accrual means that everything that you earn or buy AFTER you have married also becomes part of the joint estate. If you get divorced, the shared property is divided equally between you. Any debts are also shared.
If the marriage is out of community of property WITHOUT accrual, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage.
If the marriage is out of community of property WITH accrual then each person keeps their own property from before the marriage but anything that is accumulated during the marriage is shared. Some things like inheritances or gifts remain separate.
The default property regime has changed for different people at different times. The laws that were in place when you got married will determine what property regime applies to your marriage.
DISSOLVING A CIVIL MARRIAGE
You can only get a divorce if you show the court that there has been an “irretrievable breakdown” of the marriage or that one of the spouses is mentally ill or continuously unconscious. You can get divorced if your partner has been unconscious for at least six months and doctors don’t believe that they will ever recover. You can get a divorce if your partner has been institutionalised for mental illness for at least two years and doctors don’t think that they will ever recover. Irretrievable breakdown means that the couple can no longer live together and there is no reasonable chance of them resolving their differences. Proof of this can include evidence showing that:
THE DIVORCE PROCESS
If the parties can reach a settlement agreement before the summons is issued this will make the process much quicker and less expensive. This process is called an unopposed divorce and depending on its complexity could cost anywhere in the region of about R5.000-00 to R12.000-00. Even though it may be uncontested, a properly drawn up settlement agreement can determine the outcome of a divorce in both the short and long term.
THE PROCESS OF AN UNOPPOSED DIVORCE
An unopposed divorce is a divorce where both parties have agreed to the divorce itself as well as to all aspects of the divorce (division of the estate, primary residence of the children, maintenance to be paid etc.). This is naturally the best way of getting divorced as it is quicker, easier and less emotionally daunting than an opposed divorce (where the parties are not in agreement).
With an unopposed divorce, the parties will sign a settlement agreement which will basically set out all of the aspects of the divorce and what has been agreed between the parties in relation thereto. If there are assets to be divided, the assets must be listed (both immovable and movable) and the agreement between the parties must be clearly stipulated for each such asset.
If there are minor children involved, the settlement agreement must also include a comprehensive contact schedule for the parent who will not be exercising primary residence of the children and must ideally provide for standard contact as well as holidays, birthdays, Mother’s Day, Father’s Day, special occasions and travel. The settlement agreement must also stipulate the agreed maintenance amount to be paid by the contact parent as well as when this amount will be paid and until the children reach what age. The more comprehensive the agreement, the less room there will be for confusion or misinterpretation in the future.
The settlement agreement will then be attached to the summons, which will be issued (given a case number at the relevant court) and served on the Defendant by sheriff.
The settlement agreement will also have to be sent to the relevant Office of the Family Advocate to be endorsed or approved by them, if there are minor children involved. The court will only make the settlement agreement an order of court where it has been successfully endorsed by the Office of the Family Advocate, so this is a very important step.
Once the time allowed for the Defendant to enter an appearance to defend the matter has expired (a period of 10 (ten) court days which is approximately 2 (two) weeks), the matter can then be set down on the unopposed roll for hearing. Unopposed matters are always heard on a specific day of the week and so unfortunately the Plaintiff will have to make themselves available to appear in court on that specific day. In the South Gauteng High Court, for example, unopposed matters are always heard on Fridays.
Once the matter has been successfully set down, the court file must be prepared for the hearing date. The file must be indexed and paginated and a copy of the court file bundle must be given to the attorney or advocate who will be representing the parties on the day. Your attorney will however be responsible for ensuring that all of these preparatory steps are completed well before the time.
On the hearing date, the Plaintiff will appear in court along with the attorney or advocate. The Plaintiff may be asked a few questions by the Presiding Officer however this depends on the specific judge and on how many matters there are to be heard.
Barring any unforeseen circumstances, and assuming that the judge is satisfied, he or she will grant the divorce and will also order that the signed settlement agreement be made an order of court. This means that, if either party violates the agreement, they will be in contempt of court and can be fined or even imprisoned as a result.
The final divorce order will then have to be typed by the court typists and will normally be ready for collection between 2 to six weeks after the order was granted. Your attorney should attend to uplifting a copy of the order and sending same to the parties for their records.
This can then be taken to the Department of Home Affairs where they will amend your marriage status from Married to Divorced.
THE PROCESS OF A CONTESTED OR OPPOSED DIVORCE
The cost could be considerably higher and even absorb an entire estate if allowed to go that far by the attorneys handling the matter. It is therefore vitally important to obtain the services of a reputable divorce attorney as ourselves who have the necessary mediation, negotiation and litigation skills and who have your best interest at heart.
It is furthermore of vital importance to discuss with your attorney exactly what assets is an absolute requirement and which assets you are negotiable on to avoid costly and stressful arguing, litigation and correspondence about who gets which cutlery, crockery and teacups.
A contested or opposed divorce can take anything from six months to three years to finalize and include much telephone calls, correspondence and litigation between the relevant attorneys and their respective clients, the process being as follows:
Step 1: Divorce summons The first document that is issued by the court, on behalf of the party introducing the divorce action (called the plaintiff), is the divorce summons. This document contains details of the parties concerned: when they were married, the reasons for the divorce, and what the plaintiff wants to get out of the divorce – i.e. redistribution of assets, maintenance payments, where the children will live, as well as the rights of contact with the children.
Step 2: The plea and the counterclaim The party receiving the summons, which is served by the sheriff, is called the defendant. After a period of a time described in the rules of court, the defendant delivers their response to the statements made in the summons. This is called a plea. The plea is coupled with a document called a counterclaim, the content of which is similar to that contained in the plaintiff’s summons.
Step 3: Plaintiff’s plea to defendant’s counterclaim After a further period of time, the plaintiff then delivers their response to the counterclaim, which is called the plaintiff’s plea to the defendant’s counterclaim.
Usually this is the end of the documentation delivered between the parties. Collectively, this documentation is called the pleadings. There are occasions when further pleadings may be delivered by each of the parties, but the above documents are usually the only ones delivered as the pleadings in the matter.
Step 4: Application for trial date The plaintiff then makes an application for a trial date, which will be allocated for a future time. The time for a trial date is dependent on the region in which the parties reside. This can vary from a few months to approximately fourteen months.
Step 5: Discovery process During the period between close of pleadings and waiting for a trial date, there is a process called discovery. This is when each of the parties asks the other party to deliver the documentation they are going to be using at trial. South Africa’s system of law does not allow anyone, without the judge’s consent, to bring a “surprise document” to trial. Every document utilised at trial needs to be “discovered” – given to the other party before the trial commences. It is during this discovery process that most of the documents that have been hidden up until that point in time are usually found, as there are processes that can require specific documents to be brought to court. This documentation may include bank statements, shareholdings in the stock exchange, credit card statements, etc.
It often happens that one party, who was previously completely unaware of their spouse’s financial position, suddenly learns of it during the discovery process. This is because at that stage their attorney will require these documents in terms of the rules of court. The attorney may issue a subpoena to the relevant institutions to deliver the documents. It can be an expensive process, so here’s a tip for anyone who has not had their finger on the pulse of their spouse’s estate throughout the marriage (which is often the case): do a thorough investigation of their estate before the divorce even begins. At the commencement of the divorce it often happens that every document that is relevant “disappears” out of the house, and it then becomes a tricky task to follow the paper trail. It’s not uncommon for a party to be advised by their attorney to immediately copy each and every document that evidences any value in their spouse’s estate (such as the documents mentioned in the paragraph above). Always remember that retirement annuities, pensions and certain other policies do fall into the estate, and a percentage of these policies can depending on how they were married, be claimed by the other party.
Step 6: Finalising the divorce During the process of the pleadings and prior to trial, the matter might be settled. At this point in time, an agreement of settlement is drawn up by either the attorney or the parties themselves, if they are able to do so. The agreement is signed by the parties and then settles the divorce process. This situation would occur if mediation has worked for the parties (see below) or they have decided to settle their issues; the matter can then be resolved by signing the settlement agreement and obtaining a final order of divorce without the necessity of going to trial.
If an agreement isn’t signed during the pleadings or after mediation, a trial would be held, during which time evidence is presented by both parties and the court makes a decision on how the matter should be resolved. Usually an agreement of settlement is then entered into at court and signed by the parties, and a final order of divorce is granted.
When the matter becomes settled in this way, it can be set down for hearing on what is called the “the unopposed divorce roll”. This means that the plaintiff goes to court before a trial is held and a final order of divorce is granted without the necessity of a trial. This is the recommended process for parties to follow as it save costs. It also causes less emotional damage to the children, who are always part of the process and are unfortunately sometimes required – by the plaintiff or the defendant, and often both – to take sides.
An alternative option: mediation It’s becoming more and more common for parties to enter into a mediation process, either before or during the divorce process. There are very good reasons for divorces to be resolved through mediation. The same principles apply in the mediation as they do in the divorce – i.e. you need to be aware of the assets and their respective value in your spouse’s estate, as it is a pointless endeavour to enter into mediation without full knowledge and transparency.